United Nations Audiovisual Library of International Law INTERNATIONAL CONVENTION FOR THE REGULATION OF WHALING By Malgosia Fitzmaurice Professor of Public International Law Department of Law Queen Mary University of London 1. The Historical Context As an object of consumption, the whale has been hunted for centuries for its oil, bones and meat. The history of whaling appears to have begun thousands of years ago, possibly 2200 BC. It is believed that the first organised hunt was conducted by the Basques in 700 AD, followed by the Flemish and the Normans, and then the British and the Dutch, surpassing the whaling activities of the Basques. Spain, Norway and France started whale hunting in the ninth century AD. The British, the Dutch and the Germans expanded their whaling activities to the North Atlantic. Japan and Russia are considered to have started coastal whaling in the twelfth century and the United States in the sixteenth century. The early period of whaling was characterised by whaling from land stations, as the main method, with the use of hand-thrown harpoons and nets from rowing boats. After that, the captured whales were processed in coastal waters. Subsequent to the depletion of coastal whale resources, the period of pelagic – that is to say, open ocean– whaling began. Pelagic whaling also resulted in the expansion of whaling techniques, Russia establishing stations in Korea, and land stations opening in many other littoral states, such as Australia and Canada. With the development of new technology, land stations lost their importance. Whales were processed entirely on-board factory ships, which resulted in States expanding their operations beyond territorial waters. New technology also contributed to the increase of caught whales. These included shell harpoons with an explosive head detonating inside the whale, which shortened the time of dying for a whale, and sonar devices and helicopter tracking (on modern history of whaling see: J.N. Tønnessen and A.O. Johnsen, The History of Modern Whaling (R.I. Christophersen trans., C. Hurst & Company 1982); L. Larry Leonard, ‘Recent Negotiations Toward the International Regulation of Whaling,’ (1941) 35 AJIL, p. 90, 92; Kurkpatrick Dorsey, Whales and Nations. Environmental Diplomacy on the High Seas, University of Washington Press, 2014; Malgosia Fitzmaurice, Whaling and International Law, Cambridge University Press, 2015). Unlimited and unregulated whaling commenced in 1883 and lasted for 21 years, which proved more than stocks of whales could sustainably stand. Until 1883, there is no reliable data on the number and type of species caught. Tønnessen and Johnsen are of the view that despite the lack of data, it is without doubt that all species of whales were caught. Another invention contributing to an increase in the number of the whale species hunted occurred in 1921 when Peter Sørlle patented a ‘slip-way’ for factory ships. Pelagic whaling technologies allowed the mass exploitation of whales, and thousands of whales were caught every year, particularly in the Antarctic. Antarctic pelagic whaling quadrupled in the course of three successive periods between the years 1927-1931. However, over-production and over-expansion coincided with the world economic crisis and a decrease in the price of all raw materials, which resulted in the collapse of the whaling industry. Overexploitation of whales during the period between the two World Wars lead to the conclusion of two international conventions on the protection of whales: the 1931 Geneva Convention for Regulation of Whaling (155 L.N.T.S 349) and 1937 Agreement for the Regulation of Whaling (8 June 1937, 190 L.N.T.S. 79). The 1931 and the 1937 Whaling Conventions did not prove to be particularly effective, but they provided a legal framework for the future regulation of whaling, which, although not perfect, continues at present and is regulated by the 1946 International Convention for the Regulation of Whaling (ICRW). 2. Regulating Whaling in International Law: the International Convention for the Regulation of Whaling In 1946, states gathered to regulate whaling, establishing a new institution that was at the same time very conservative and radical to a certain degree (on history of the Copyright © United Nations, 2017. All rights reserved 1 www.un.org/law/avl United Nations Audiovisual Library of International Law negotiations of ICRW see Kurkpatrick Dorsey, Whales and Nations. Environmental Diplomacy on the High Seas, University of Washington Press, 2014). Relying on scientific expertise, the drafters of the Convention followed the more progressive tradition of the United States in trying to reconcile the needs of industry with those of the conservation of whale stocks (as exemplified in the Preamble to the Convention by the reference to sustainable use). Acting United States Secretary of State, Dean Acheson, declared that whales were ‘the wards of the entire world’, a ‘common resource’ that must be conserved. He emphasised the need for cooperation in the use of the world’s resources, arguing that the conference illustrated ‘increasing cooperation among the nations in the solution of international conservation problems.’ Against this background, the Convention’s objective appears to have been to serve as a means towards achieving such cooperation aimed at the conservation of whale stocks. The approach of the United Kingdom was not so much focused on conservation of the world’s whales as on preservation of the whaling industry. This attitude was by and large dictated by the postwar conditions prevailing in United Kingdom, namely, scarcity, hunger, and want. It is also worth mentioning a remark made by C. Girard Davidson, Assistant Secretary of the United States Department of the Interior, that science was the key to sustainable use. He also explained his vision for the International Whaling Commission (the “IWC”), the central body of the Convention, to be that of a body of scientific excellence, the vocation of which would be the careful management of resources belonging to the whole world, thus contributing to ‘a more peaceful and happy future for mankind.’ The negotiations of the ICRW were eventful. Delegates agreed to two clauses from the United States progressive-era laws: protection of aboriginal whaling, and authorisation for collecting whales for scientific purposes, with both of these grounds for whaling being outside the stipulated quotas. There were some unexpected events concerning the arrival of the Soviet delegation, which, to ensure their participation in the Convention, gained some concessions from the other delegates, such as an extended season 1946–47. Two issues in particular caused a certain degree of disagreement amongst the delegates: the tacit acceptance system of operation of the Convention (which involved an opting-out procedure), and the two-thirds voting procedure for any amendment to the agreed schedule of regulations. The former survived; while the latter was changed to three- quarters of the parties to the Convention in order to make an amendment, thus ensuring that a greater portion of the contracting parties was necessary to effect any change. The Norwegian delegation advocated that the IWC be afforded competence to adopt binding decisions. The United Kingdom also favoured a stronger IWC. However, there were delegations which were fully satisfied with the IWC not being granted the competence to take binding decisions, such as the French and Dutch delegations, both of which were against a stronger IWC given that such a development would have been to the detriment of their own interests, which were best served by their governments. The opting-out system was considered necessary as the proposed model of the IWC created a new agency that would have curtailed the freedom of action of states on the high seas and therefore, would have had negative implications on the ability of states to pursue their particular economic benefit unfettered. Without the inclusion of the opting-out procedure, the United States, the Netherlands, France, and the Soviet Union would not sign the ICRW. Dorsey has observed that, in retrospect, the failure to reject the opting-out system had been the greatest mistake of the 1946 meeting. It is not a surprise to note how opting-out mechanisms often led to the undermining of the collective efforts of a group of states. For instance, it is not unknown for states to resort to the opting-out mechanism in order to avoid implementing decisions detrimental to their interests. Still, Dorsey’s reflections aside, the refusal to include any such mechanism could have reasonably led to the alienation of some states, thus undermining whatever chances for interstate cooperation and action may have existed at the time. Norwegian and British position vis-à-vis the opting-out procedure was based on inaccurate projections with regard to future developments. The Norwegian and the British had not foreseen the expansion of Soviet whaling; and were of the view that Japan would not be admitted to whaling on a permanent basis. Having miscalculated in their outlook, they adhered to a vision of the future of the whaling industry in which Norway and the United Kingdom dominated, to the exclusion of other serious whaling nations. The Copyright © United Nations, 2017. All rights reserved 2 www.un.org/law/avl United Nations Audiovisual Library of International Law proposal to subject the IWC to the oversight of the Food and Agriculture Organisation (the ‘FAO’) also did not gain acceptance. The delegates broke the negotiations into two parts: the first part was agreeing on a new Protocol modelled on the 1945 Protocol to regulate the whaling season between 1947– 48; and the second part was to negotiate a more complex convention – namely, the 1946 ICRW– to establish the International Whaling Commission. Such an approach would give more time to the signatories of the ICRW to ratify it. Most importantly, the Convention retained the annual limit, established in 1944, of 16,000 blue whale units (the ‘BWU’) in Antarctic waters.